The Past, Present, And Future of Bankruptcy Law in America

7/31/2019 The Past, Present, And Future of Bankruptcy Law in America

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George Mason University

SCHOOL of LAW

The Past, Present, and Future of Bankruptcy Law in America

Todd Zywicki

02-22

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201

THE PAST, PRESENT, AND FUTURE OF

BANKRUPTCY LAW IN AMERICA

Todd J. Zywicki*

DEBTS DOMINION: A HISTORY OF BANKRUPTCY LAW IN AMERICA. ByDavid A. Skeel, Jr. Princeton: Princeton University Press. 2001. Pp. xi, 281.$35.

As this Review was being written, Congress once again failed to pass thebipartisan bankruptcy reform bill, although it is expected to be enacted atsome point. At the same time, WorldCom, Enron, Global Crossing, and theirignominious peers continue to set records for the size, expense, and publicattention drawn to business bankruptcy. For the first time, consumer bank-ruptcies surpassed the 1.5 million per year mark, continuing an irresistibleupward trend. Meanwhile, as law firms announce layoffs and salary freezes

in most departments, bankruptcy professionals prosper amidst the despair,billing $1 million per day on the Enron case alone even as creditors andshareholders sit by awaiting payment. Clearly we are witnessing a profoundand unprecedented change in the political, social, and economic frameworkof bankruptcy.

How did we get here and where are we headed in the future? These arethe questions brilliantly addressed by David A. Skeel, Jr.,1 in his book,

Debts Dominion: A History of Bankruptcy Law in America. Told with asound understanding of theory, law, and an eye for detail, Skeels book is aninstant classic a comprehensive and intriguing history of bankruptcy lawin America. But to characterize it as history is to slight the books reach

and importance. In a concise and readable 250 pages, Skeel brings to life notonly the political and economic history of bankruptcy law, but also the fas-cinating history of the bankruptcy bar itself. Finally, Skeel deftly leads thereader through the fundamental theoretical debates that have shaped bank-ruptcy law during the past century, including the contentious intellectual de-bates between Progressive academic theorists and their rivals from theLaw and Economics School. Skeel has at once written a book that willserve as the definitive work on the history of bankruptcy law for bankruptcyexperts while also crafting a book accessible to the interested generalist inlaw or business who seeks a comprehensive guide to how the modernAmerican bankruptcy system developed.

* Professor of Law, George Mason University School of Law. A.B. 1988, Dartmouth; M.A.(Economics) 1990, Clemson; J.D. 1993, University of Virginia. Ed. I would like to thank theLaw & Economics Center at George Mason University School of Law for financial support. I wouldalso like to thank the International Centre for Economic Research (ICER) Turin, Italy, where muchof this essay was written as a Fellow during Summer 2002.

1. Professor of Law, University of Pennsylvania.


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This Review considers the past, present, and future of bankruptcy lawthrough the lens of Skeels analysis. Part I provides an overview of Skeelshistorical thesis, including the novel theoretical methods he uses to advancehis analysis. Part II examines the current state of bankruptcy law, focusingparticularly on the political and economic battles involving bankruptcy re-

form during the past several years. Part III considers Skeels predictions asto the future evolution of bankruptcy law and practice in America andabroad.

I. THE PAST: THE HISTORY OF BANKRUPTCY LAW IN AMERICA

Skeel divides the history of bankruptcy law in America into three his-torical stages: the nineteenth century, the era of the 1898 Bankruptcy Actand the Great Depression, and the modern era of the 1978 Bankruptcy Code.As Skeel notes, the shape of bankruptcy law and practice throughout Ameri-can history is at least as much a result of political considerations and influ-ence as economic considerations. To develop his point, Skeel draws on thefields of public choice and social choice, both of which apply the assump-

tions and tools of economics to the study of politics. Skeel uses these toolsto shape his narrative, giving his argument an analytical edge that prior his-torical studies of American bankruptcy law lacked.2 In particular, Americanbankruptcy law can be understood as resulting from the clash of three sets ofinterests: pro-debtor ideological interests (often spearheaded by law profes-sors), creditors, and bankruptcy professionals (including bankruptcy judges).Although the outcome of this three-way political wrestling match is unclearat any given moment, the dominant course of evolution of American bank-ruptcy law has been towards increasingly-generous bankruptcy laws thatprovide strong incentives for both individual and corporate debtors to filebankruptcy.

A. Bankruptcy Legislation in the Nineteenth Century

The first era of American bankruptcy legislation was rooted in the Con-stitutions enumeration of Congresss power to establish uniform laws onthe subject of Bankruptcies throughout the United States.3 Like the othereconomic provisions of the Constitution, the primary purpose of the Bank-ruptcy Clause was to reign in the pro-debtor excesses of state legislaturesunder the Articles of Confederation.4 Under the Articles of Confederation,creditors confronted numerous obstacles to their attempts to collect judg-ments, including judgment-jumping from one state to another and efforts bysome states to discharge obligations owed by debtors, primarily at the ex-pense of out-of-state creditors.5 According to James Madison, regulation ofbankruptcy was intimately connected with the regulation of commerce, and

2. The classic study is CHARLES WARREN,BANKRUPTCY IN UNITED STATES HISTORY (1935).

3. U.S.CONST. art. I, 8, cl. 4.

4. See Todd J. Zywicki, The Bankruptcy Clause, in THE HERITAGE GUIDE TO THECONSTITUTION (forthcoming 2003).

5. Thus, although conventional wisdom has it that the Bankruptcy Clause of the Constitutionwas a protection for debtors, it was primarily the reverse. Indeed, many states maintained imprison-ment for debt well into the nineteenth century.Id.


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[would] prevent so many frauds where the parties or their property may lieor be removed into different states that the expediency of it seems not likelyto be drawn into question.6 Subject to these powers designed to augmentthe ability of creditors to recover judgments, most debtor-creditor relationsremained governed by state law, an allocation of power that continues to-

day.During the nineteenth century, the federal government enacted threebankruptcy laws prior to the 1898 Act: the Bankruptcy Acts of 1800, 1841,and 1867 (p. 25). Each Act was spawned in the midst of financial crisis andwas repealed soon thereafter. The 1800 Act lasted only three years, the 1841Act lasted only two years, and the 1867 Act was repealed eleven years later.All together, therefore, these three acts lasted a total of sixteen years. In theintervening periods, debtor-creditor relations remained wholly the provinceof state law. Skeel demonstrates that this federal instability resulted fromlegislative cycling, a phenomenon identified by economists and politicalscientists that can arise where lawmakers hold three or more positions whichcannot be aligned on a simple linear spectrum of choices (p. 28). Skeel iden-tifies three different positions with respect to bankruptcy, each identified

with a particular region of the country, and each of which had approxi-mately equal support. As a result of these tensions, bankruptcy legislationwas enacted only in periods of crisis, receding soon afterwards. Even then, itwas often necessary to engage in political logrolling in order to fashion amajority. Given the regional nature of the American economy for most ofthe nineteenth century, however, there was little need for national bank-ruptcy legislation in most circumstances, leaving debtor-creditor relationslargely in the hands of state governments.

B. The Bankruptcy Act of 1898 and the Great Depression

The decades following the Civil War saw an increasing nationalizationof the American economy, spurred by advances in communications and

transportation technology, such as railroads, electricity, the air brake, theelevator, and the steam boiler.7 Millions of Americans left rural farms forurban factories, accompanied by millions more new immigrants.8 The num-ber of factories nearly quadrupled from 140,000 in 1865 to 512,000 in 1900,and the size of factories grew even more rapidly.9 Between 1870 and 1900the nationwide rail network grew from 53,000 to 193,000 miles.10 Accom-panying the rise of the national economy, a host of new special-interestgroups arose to represent an interstate constituency.11

6. THE FEDERALIST NO. 42 (James Madison).

7. See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN

COMMUNITY 368 (2000).8. Id. at 370-71.

9. Id. at 368-69.

10. Idat 369.

11. See Todd J. Zywicki,Beyond the Shell and Husk of History: The History of the SeventeenthAmendment and its Implications for Current Reform Proposals, 45 CLEV. ST. L. REV. 165, 179(1997); Todd J. Zywicki, Senators and Special Interests: A Public Choice Analysis of the Seven-teenth Amendment, 73 OR.L.REV.1007 (1994).


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Skeel focuses on the large number of commercial organizations foundedduring this period, arguing that they provided the impetus that eventually ledto the 1898 Bankruptcy Act (p. 35). In particular, the overlay of an emergingnational economy onto a state-based system of debt collection created nu-merous problems. Merchants who engaged in interstate commerce com-

plained bitterly and repeatedly that debtors played favorites when they raninto financial trouble, he writes, adding that, [t]he favorites were familymembers and local creditors, not the out-of-state merchants (p. 36).

The primary impetus for the 1898 Act, therefore, was the efforts ofcreditors to develop more streamlined procedures for debt collection, espe-cially on interstate debts. But Skeel notes two anomalies of the 1898 Act asfinally enacted: first, the primary beneficiaries of the Act were bankruptcylawyers rather than creditors, and second, the 1898 Act turned out to bemuch more debtor-friendly than originally anticipated (p. 43). As Skeel ob-serves of the finished product, These characteristics the generallydebtor-friendly approach to bankruptcy, and the primacy of lawyers ratherthan an administrator distinguish U.S. bankruptcy law from every otherinsolvency law in the world (p. 43).

The lawyer-friendly and debtor-friendly characteristics of the 1898 Acthave distinguished American bankruptcy law ever since. Moreover, theyserved to end the century of legislative cycling that had undone previousbankruptcy laws. The debtor-friendly nature created by the 1898 Act re-flected the rise of an American populist ideology that continues to permeatethe bankruptcy debates today. Although lawyers did not provide the impetusfor the 1898 Act, they came out of the woodwork to fill the need createdby the new law (p. 43). This created an entrenched and well-organized con-stituency who would benefit from the perpetuation of the law and thereforecould be counted on to oppose any future repeal or major innovations,thereby ending legislative cycling in Congress.12

The 1898 Act remained in place until supplanted by the 1978 Code.During this period, however, bankruptcy law and practice was certainly not

static. The invention of equity receiverships as a judicial procedure to reor-ganize the railroads at the turn of the century, the intervention of the GreatDepression, and William O. Douglass high-profile hearings while Chair-man of the Securities and Exchange Commission are also among the pivotalincidents recounted by Skeel. From this economic and political processemerged the Chandler Act amendments to the Act, which increased gov-ernmental oversight of the bankruptcy process. Although space limits theability to discuss these developments in detail here, these developments re-sulted in prestigious Wall Street law firms abandoning their bankruptcypractices. At the same time, ordinary bankruptcy lawyers remained un-scathed, and in many ways richer and more influential than ever before.

C. The 1978 Bankruptcy Code

By the 1970s the creaky construct of the 1898 Act was ripe for overhaul.Again the impetus came from creditors who were frustrated with the risingnumber of personal bankruptcy filings during the 1950s and 1960s. Individ-

12. See Saul Levmore, Voting Paradoxes and Interest Groups, 28 J.LEG.STUD. 259, 268-72(1999).


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ual filings rose from 25,040 in 1950 to 178,202 in 1970 (p. 137). Althoughtrivial by modern standards, at the time this rise sparked concern. Nonethe-less, creditors once again lost control of the process they initiated, as the baragain seized the reins of the reform effort. By the time the process was over,both personal and business bankruptcy laws were made more lax rather than

strict. Skeel documents a series of bankruptcy scope expanding reformsthat resulted in increased bankruptcy filings (both personal and business), aswell as a more expansive role generally for bankruptcy law in the Americaneconomy and society (p. 147-51). In addition, the 1978 Code brought WallStreet lawyers and banks back into bankruptcy practice by increasing fees,increasing prestige, and further weakening public oversight of the processby elimination of the SECs oversight role. The end result was to reinvigo-rate professional control of bankruptcy proceedings and professional influ-ence in Congress. As Skeel notes, ideology was muted throughout the proc-ess that culminated in the 1978 Code, leading to a belief that bankruptcywas primarily a technical process best left to the experts namely,bankruptcy professionals (p. 141). Wrapped in the veneer of expertise,bankruptcy professionals further entrenched their influence over bankruptcy

proceedings and legislation, fending off efforts to retrench the scope or ex-pense of either personal or business bankruptcy. As Bruce Carruthers andTerence Halliday observe in their study of the 1978 Code, following its en-actment bankruptcy professionals experienced a meteoric rise in their pro-fessional identity, their market position, and the rewards accompanyingboth.13 Similarly, Congressman Robert Drinan observed during the debatesover the 1978 Code that it amounted to a full employment bill for law-yers.14

The 1978 Bankruptcy Code profoundly changed the bankruptcy systemand its importance in society and the economy. By making bankruptcy moreattractive to individuals, personal bankruptcies rose from less than 300,000in 1980 to over 1.5 million in 2002.15 By making bankruptcy more attractivefor corporations as well, it routinized corporate bankruptcy, turning it into a

business and strategic decision rather than a last resort. The wealth andprominence of bankruptcy professionals rose as well, as they escaped theunsavory ghetto in which they toiled for decades after the New Deal re-forms. Today, the largest and most prestigious law firms, investment banks,accounting firms, and consultants in America have thriving bankruptcypractices, representing all interests in the bankruptcy system, includingdebtors. And although piecemeal reforms enacted in 1984 reined in some ofthe excesses of the 1978 Code, they did little to stem the rising tide of con-sumer bankruptcy filings or to reduce the expense and delay associated withthe chapter 11 process.

13. BRUCE G.CARRUTHERS &TERENCE C.HALLIDAY,RESCUING BUSINESS:THE MAKING OFCORPORATE BANKRUPTCY LAW IN ENGLAND AND THE UNITED STATES 421 (1998).

14. Id. at 302 (quoting Congressman Robert Drinan (internal quotation marks omitted)).

15. This data is available at http:www.abiworld.org/stats/1980annual.html (last visited May 13,2003).


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D. The Lessons of History

The 1898 Act thus set in place the three political interests that haveshaped American bankruptcy law from 1898, through the 1978 Code, to thepresent: (1) creditor interests, (2) pro-debtor interests (usually ideological,

rather than particular), and (3) the interests of bankruptcy professionals. AsSkeel notes, however, of all these groups bankruptcy professionals are theones who have most strongly influenced the shape of U.S. bankruptcy law inthe century since its enactment in 1898 (p. 81). This is because, comparedto other interest groups, bankruptcy lawyers are relatively better-positionedthan other interest groups to influence the legislative process. It is importantto keep in mind that interest-group influence is a matter of relative influ-ence, not absolute influence.16 Thus, in general, even if interest-group A isless-organized than interest group B, A will still be favored in the politicalprocess relative to even more dispersed and unorganized groups, except forthe rare situation where As and Bs positions are squarely opposed. In gen-eral, however, gains to trade are available among interest groups such thatcomparatively well-organized interest groups can form alliances to provide

shared benefits to themselves and to impose the costs on the unorganizedpublic.17 Following Mancur Olson, Skeel observes that an interest-groupsinfluence is primarily a function of how homogeneous, coherent, politically-savvy, and well-organized the group is.

Public choice analysis illuminates why bankruptcy lawyers have provensuch a potent lobbying force. Bankruptcy lawyers have clear goals to in-crease the number of bankruptcies filed and the expense of each. Regardlessof a whether a particular lawyer represents debtors, creditors, or both, thefact remains that bankruptcy lawyers can make money only if individualsand corporations file bankruptcy. Thus, bankruptcy lawyers generally willseek to increase both the number of bankruptcy cases filed and the expenseof bankruptcy proceedings. This also means that even though debtors andpotential debtors are not directly represented in the bankruptcy process, their

interests are usually well-represented by bankruptcy attorneys who willlobby for open access to bankruptcy for debtors. Moreover, the highly tech-nical and complex nature of bankruptcy law and practice increases the lev-erage of lawyers in the legislative process both by making their expertise anessential part of the legislative process and making it more difficult for thepublic and lawmakers to monitor their special-interest influence on particu-lar provisions that may seem unimportant but can have a vast impact on alawyers wealth (p. 87). This technical expertise further heightens the influ-ence of lawyers when lawmakers move from issues of broad principle totechnical legislative drafting (p. 46).

Although creditors have clear interest in the content of bankruptcy laws,they suffer several problems in exercising political influence when com-pared to bankruptcy professionals.18 First, many creditors, such as trade

16. See Todd J. Zywicki,Environmental Externalities and Political Externalities: The PoliticalEconomy of Environmental Regulation and Reform, 73 TULANE L.REV. 845, 874-87 (1999).

17. See id.

18. See Todd J. Zywicki, Rescuing Business: The Making of Corporate Bankruptcy Law inEngland and the United States, 16 BANKR.DEV.J. 361, 387-88 (2000) [hereinafter Zywicki,Rescu-ing Business] (book review).


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creditors, are simply too hard to organize into an effective lobbying groupbecause of their large numbers and the small stake each has in changing thelaw. Second, unlike bankruptcy lawyers, the interests of creditors are nothomogeneous, creating collective action problems. Because a debtor bydefinition is unable to pay his debts, secured creditors and unsecured credi-

tors usually are locked in a zero-sum game regarding distribution of thedebtors estate. A bigger slice for secured creditors means less for unsecuredcreditors, and vice-versa. Third, to the extent that unsecured credit becomesmore risky because of easy access to bankruptcy, this raises the cost of un-secured credit and creates a market substitution toward greater use of se-cured credit.19 Thus, secured creditors will have little concern about theoverall number of bankruptcy filings or the amounts distributed, althoughthey will care about specific issues that affect them, such as cramdown andvaluation issues.20

The incentive for creditors to lobby for changes in the bankruptcy sys-tem will also be mitigated by the fact that any gains will be temporary.Tightening bankruptcy laws to reduce risk retroactively creates a one-timeopportunity to earn economic profits, but competition and entry into the

market will dissipate those profits, returning all lenders to a competitiveequilibrium. Creditors are able to pass along some of their losses to borrow-ers who repay their debts repayers in the form of higher downpay-ments, higher interest rates, and reduced benefits (p. 82). Because this miti-gates some of the creditors losses, this further reduces creditors incentivesto lobby for tighter bankruptcy laws. Repayers face even more daunting ob-stacles to making their voices heard given the small cost borne by eachrepayer as a result of excessive bankruptcies, each has minimal incentive totry to influence the legislative process. Moreover, repayers have no effectiveproxy representative for their interests, unlike bankruptcy filers who cancount on bankruptcy lawyers to aggressively advance their interests in thepolitical process.

The final influence on the bankruptcy process is the tradition of pro-

debtor, populist and progressive ideology in American politics. These bank-ruptcy progressives view bankruptcy as an economic and social safetyvalve to redistribute wealth to the poor and to preserve struggling busi-nesses. Skeel also notes the major involvement of bankruptcy law professorsin the legislative process, such as Harvards Vern Countryman,21 usuallyarticulating a pro-debtor ideological perspective (p. 194). Finally, so-calledconsumer advocates such as Ralph Nader have also tended to favor ex-pansion of access to the bankruptcy system on populist principle, eventhough easy bankruptcy access only benefits the small class of bankruptconsumers, not the larger class of consumers who repay their debts andthereby subsidize those who file bankruptcy. As Skeel notes, this progres-

19. See Todd J. Zywicki, The Economics of Credit Cards, 3 CHAPMAN L. REV. 79, 125-26(2000).

20. Cramdown and valuation issues are of particular interest to creditors because they affect thevaluation of the creditors collateral and thus how much can be recovered in bankruptcy. See Todd J.Zywicki, Cramdown and the Code: Calculating Cramdown Interest Rates Under the BankruptcyCode, 19 T.MARSHALL L.REV.241, 251 (1994).

21. Countryman began his career in the 1950s as a defender of alleged communist sympathiz-ers and became an outspoken and politically active prodebtor lobbyist through the 1960s and 1970s,playing a pivotal role in shaping the debtor-friendly provisions of the 1978 Code (p. 194).


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sive ideology has greatly influenced the shape of American bankruptcy leg-islation (p. 16).

Thus, the history of American bankruptcy legislation is not surprising.Reform efforts are initiated in the rare instances when creditors are able toovercome their collective-action problems and progressive ideological op-

position to push for reforms. Once the process commences, however, boththe process and the technical drafting of legislation are soon captured bylawyers. In the end, lawyers usually manage to side-track the reforms thatwere originally sought and instead end up turning the legislation to theirown advantage.

II. THE PRESENT: THE BANKRUPTCY REFORM ACT OF 2002

Skeels analysis helps to unravel the politics surrounding the bankruptcyreform efforts of recent years, including the Bankruptcy Reform Act of 2002(BRA), which just failed in the last Congress. The reform efforts were ini-tiated in 1994, when Congress authorized a new commission, the NationalBankruptcy Review Commission (NBRC), to conduct a study of bank-

ruptcy law and to recommend changes. (p. 187). Modeled after the 1973Commission, the NBRC was charged with reviewing the Code and recom-mending changes and updates. The bankruptcy world had certainly changeddramatically in the intervening years between the passage of the 1978 Codeand the formation of the NBRC in 1994. In 1978, there were 172,423 non-business bankruptcy filings (p. 188). By 1994, the consumer bankruptcy fil-ing rate quadrupled to almost 800,000 annually, and has almost doubledagain since then (p. 188). Moreover, the rise of leveraged buy-outs, junkbonds, and mass tort litigation had all changed business bankruptcy substan-tially.

Unlike the 1973 Commission, however, the NBRCs deliberations andconclusions were highly divisive and controversial, especially regardingconsumer bankruptcy issues. As Skeel writes, In its consumer recommen-

dations, the 1994 commissions report took a prodebtor case, firmly reject-ing calls to tighten the bankruptcy laws and vigorously defending consumerdebtors right to an immediate discharge. Consumer creditors were less thanenthusiastic with the process (p. 187). NBRC Reporter and Harvard LawSchool professor Elizabeth Warren, the acknowledged leader of the modernbankruptcy progressives, excluded contrary views and orchestrated a set ofrecommendations that advanced the unique perspectives of its leaders (p.201). Despite the blue ribbon composition of the NBRC, its idiosyncraticideological orientation guaranteed that its recommendations would be deadon arrival when presented to Congress in 1996. Unsurprisingly, when Con-gress actually turned to the task of reforming the bankruptcy laws, it hasmoved in the direction of trying to tighten the laws, rather than looseningthem.

Launched with fanfare, the NBRC had at its disposal ample financial, in-tellectual, and political resources. Nonetheless, the NBRC process quicklyran off the rails of moderation and compromise, producing a one-sided andpolitically stillborn product. Instead of following the Commissionsprodebtor recommendations, Congress immediately proposed a bankruptcyreform bill that tightened the bankruptcy laws by weeding out fraud andabuse in consumer cases and enacting reforms designed to reduce the cost


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and delay of small-business bankruptcies. Skeel asks, How did so muchdysfunction come from a commission who innocuous-sounding charge wasto look for ways to perfect a generally adequate framework? (p. 198). Inaddition, why were the political dynamics in this situation so strongly ori-ented toward reform that bankruptcy reform efforts appear to be able to

overcome the traditional obstacles that had prevented comprehensive reformin the past?In part, both the NBRCs dysfunction and the BRAs proposed reforms

occurred because of the different ideological orientations of the NBRC andCongress during the 1990s. In contrast to the leftward tilt of the NBRC andits leaders, the Republican takeover of Congress in 1994 made the Washing-ton political environment turn much more ideologically conservative, lead-ing to a political and intellectual environment that was decidedly unfriendlyto the NBRCs prodebtor recommendations (p. 199). Skeel attributes thisdistinction to the academic debate between progressive scholars on onehand and law and economics scholars on the other. Although there ismuch truth to this analysis, I believe it is incomplete. Based on my personalexperience as an advisor to Congress for the past several years on bank-

ruptcy reform, I believe that Congress is animated by a new political ideol-ogy of personal responsibility that serves as a counterweight to the tradi-tional prodebtor ideology.22 Although it overlaps in many ways with lawand economics ideas, there is much in the personal responsibility ideologythat is not captured by the law and economics label, which connotes anoverriding concern with economic efficiency. The personal responsibilityideology sees consumer bankruptcy as primarily a moral issue, rather thanan economic issue. To be sure, personal responsibility and law and econom-ics arguments often reinforce one another, as much of the personal responsi-bility rhetoric stresses the injustice of forcing responsible consumers to sub-sidize the recklessness of profligate borrowers. But the distinction is deeperthan just economics: soaring consumer bankruptcy filing rates viewed as acrisis of the American soul, rather than a mere matter of economic policy.

Put simply, there is no economic explanation for the upsurge in individualbankruptcy filings in the late-1990s, an era of unprecedented prosperity, lowinterest rates, low unemployment rates, and soaring levels of individualwealth. Given the anomaly of economic prosperity combined with the stag-gering rise in bankruptcy filings, many have concluded that the problem issocial and spiritual, rather than economic.23

This focus on an ideology of personal responsibility is evident in the de-bates surrounding bankruptcy reform. Consider the comments of House Ma-

jority Leader Richard Armey:

Bankruptcy laws in America have put a lie to one of the most important lessonswe teach our children. Bankruptcy laws in America have said to our children,you are a fool if you do not file. That is not right. . . . It is not about the money.Anybody who thinks this bill is about who gets the money is missing the

22. This political emphasis on personal responsibility is evident in many other areas as well,including most notably, welfare reform. See Todd J. Zywicki, Bankruptcy Law as Social Legisla-tion, 5 TEX.REV.L.&POL. 393, 430 (2001) [hereinafter Zywicki,Bankruptcy Law as Social Legis-lation].

23. Seeid. at 428-29.


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point. . . . This bill is about the character of a Nation and will the Nations lawshave a character of the Nations people.24

House Judiciary Chairman James Sensenbrenner similarly remarks, Thepurpose of the bill is to improve bankruptcy law and practice by restoringpersonal responsibility and integrity in the bankruptcy system, and to ensure

that the system is fair to both debtors and creditors.25

When the BRA wasreported out of the Conference Committee in July 2002, Senator OrrinHatch compared it to recent corporate responsibility initiatives, stating, Inthese hard economic times, while were dealing with corporate responsibil-ity, we should also address personal responsibility.26 Many liberal leadershave embraced the moral argument in favor of bankruptcy reform, such asDemocratic Congressman Barney Frank, who says, I think people shouldhave to pay their bills. . . . I am for toughening bankruptcy laws. Its only aminority who ever go bankrupt, and those costs get passed on to the major-ity who pay their bills.27 Although economic analysis is entwined in thevalues argument, much of Congresss interest in consumer bankruptcy re-form is rooted in values-based concerns over personal and financial respon-sibility.28 Personal bankruptcy is part of a larger set of concerns over the

moral character of the nation, its leaders, and the negative impact of rampantbreaking of ones financial promises on aspects of reliability, trust, and re-ciprocity in other aspects of life.29

Nesting bankruptcy into a larger social and ideological framework re-garding personal responsibility and morality has altered the political balanceregarding bankruptcy. According to Douglass North, the power of ideologyin political decision-making is that it helps to overcome collective actionand free rider problems and thus to motivate action in the face of concen-trated interest-group pressures.30 Non-progressives have traditionallyviewed bankruptcy in technical, rather than ideological terms, leaving noarticulate philosophical counterweight to the progressives. The developmentof a personal responsibility ideology in Congress has offset the progres-sives traditional advantage, creating a shift in the baseline presumptions forCongress as to the appropriate direction for reforms. Ideological voting bypoliticians also tends to be most pronounced on issues of low public sali-ence, of which bankruptcy appears to be such an issue.31 The effect of theconservative takeover of Congress in 1994, therefore, effected an ideologi-cal shift in Congress that created a momentum for stricter bankruptcy lawsanchored in notions of personal responsibility, rather than for the prodebtor

24. 147 CONG.REC. H518 (daily ed. Mar. 1, 2001) (statement of Rep. Armey).

25. 147 CONG.REC. H517 (daily ed. Mar. 1, 2001) (statement of Rep. Sensenbrenner).

26. Quoted inEditorial, Bankruptcy Reform Nears: People Who Can Repay Debts Should BeRequired to Do So, OMAHAWORLD-HERALD,July 26, 2002, atp. 12B.

27. Anne E. Kornblut, Credit Card Issuers Seek to Curb Debtors Bankruptcy Relief, BOSTONGLOBE, Oct. 11, 1999, at A1.

28. See Todd J. Zywicki, With Apologies to Screwtape: A Response to Professor Alexander, 9J.BANKR.L.&PRAC. 613 (2000) [hereinafter Zywicki, With Apologies to Screwtape].

29. See Zywicki,Bankruptcy Law as Social Legislation, supra note 22, at 412-13.

30. DOUGLASS C.NORTH,STRUCTURE AND CHANGE IN ECONOMIC HISTORY 51-58 (1981).

31. See Joseph P. Kalt & Mark A. Zupan, Capture and Ideology in the Economic Theory ofPolitics, 74 AM.ECON.REV. 279 (1984).


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reforms favored by the NBRC. This counteroffensive must have surprisedthe NBRC leaders whereas previous progressive initiatives had met withminimal ideological opposition, this time the NBRCs recommendationsmet with fierce ideological opposition from Congress.

The Republican takeover of Congress also dramatically affected the in-

terest-group balance in Congress, weakening the traditional hammerlock ex-ercised by bankruptcy lawyers. When the NBRC was constituted, it wasgenerally believed that its influence would be similar to that of the lawyer-dominated National Bankruptcy Review Commission of the 1970s, whichhad exercised comprehensive control over the drafting of the 1978 Code.The Commission of the 1970s effectively served as a private legislature,exercising agenda control throughout the entire legislative process that cul-minated in the 1978 Code. It was generally believed that the NBRC of the1990s would have a similar influence. As commentators have observed,these private legislatures exhibit many of the same interest-group andpublic choice influences as traditional legislatures.32 In fact, because of theundemocratic composition of these groups, their narrow scope, and their lowpublic profile, these private law reform groups often exhibit even deeper pa-

thologies than public legislatures.33 As noted above, lawyers and progres-sive ideologues share a common interest in the expansion of the role ofbankruptcy. Given the pro-debtor ideological orientation of the NBRC andthe strong agenda control exercised by its leaders, the interests and influenceof bankruptcy lawyers was highly magnified, much more so than in a publiclegislature.

Given the obvious stake of lawyers in the reform process, the receptiveattitude of the NBRCs leaders to the influence of lawyers is striking. Pro-fessor Warren, the NBRC reporter, has criticized the attempts of creditors toinfluence the NBRCs hearings, longing instead for the days when creditorsand other interested parties left bankruptcy law up to the experts who spenttheir professional lives in the field, advising Congress either through the Na-tional Bankruptcy Conference or later as part of the National Conference of

Bankruptcy Judges. Those days have passed.34 Elsewhere she observes ofthe NBRC:

The interests of the lobbyists and their collateral acquaintances came as a sur-prise, but it should not have. Long past were the days when Frank Kennedycould meet with Larry King, Joe Lee, Conrad Cyr, Vern Countryman, GerrySmith and a handful of other people to work out the basic structure of the 1973Commission recommendations on consumer bankruptcy.35

Whereas creditors and other interested parties were dismissed as special in-terest pleaders, bankruptcy lawyers and judges were viewed as disinterestedexperts, notwithstanding the vital financial stake that they had in the out-

32. See Alan Schwartz & Robert E. Scott, The Political Economy of Private Legislatures, 143U. PA.L.REV. 595, 607-08 (1995). To be sure, there are some differences as well as similaritiesbetween the NBRC and other private legislatures. Unfortunately, space constraints prevent a moredetailed comparison.

33. Id.

34. Elizabeth Warren, The Market for Data: The Changing Role of Social Sciences in Shapingthe Law, 2002 WIS.L.REV. 1, 5.

35. Elizabeth Warren,A Principled Approach to Consumer Bankruptcy, 71 AM. BANKR. L.J.483, 488 (1977).


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come of the NBRC process. This dichotomy is absurd, but to the extent thatkey NBRC decision-makers actually embraced a white hat versus blackhat characterization of rival interest groups, it may account for some of thedovetailing of lawyer and ideological interests in the NBRC process. In turn,various organizations of bankruptcy professionals provided major financial

support to progressive scholars whose research coincidentally tends to sup-port the positions advocated by the bankruptcy bar.36In the end, the NBRC recommendations comprised a veritable wish-

list of the positions favored by the bankruptcy bar. Although the NBRCsrecommendations covered a vast scope, they almost uniformly increased thepower, prestige, and wealth of bankruptcy lawyers and judges. For example,the recommendations included such items as prohibitions of pre-bankruptcywaivers of bankruptcy rights in chapter 11 cases (such as waiver of the rightto file bankruptcy or waiver of the automatic stay), Article III status forbankruptcy judges, recommendations for greater use of bankruptcy to re-solve mass tort issues, and numerous recommendations in the consumer areathat increased the incentives to file bankruptcy.37

Bankruptcy professionals also lobbied intently against the BRA in Con-

gress, and while successful at delaying reform, they were unable to defeat it.In the end, opponents of reform have so far been able to count on only 20%-25% of Congress to oppose reform. Moreover, even this meager figure in-cludes the votes of those who voted against the BRA not based on ideologyor interest-group solidarity regarding its core provisions, but because of op-position on tangential issues such as proposed limits on the homestead ex-emption or the Schumer Amendment relating to nondischargeability ofcivil judgments imposed on abortion-clinic protestors. Many of these mem-bers, especially conservatives from Texas and Florida, clearly supported thecore provisions of the BRA. In the end, therefore, the only substantive op-position to bankruptcy reform came from the extreme prodebtor fringe ofthe ideological spectrum and politicians who were especially beholden tofinancial contributions by lawyers.38 Despite these intense lobbying efforts,

bankruptcy professionals have been unable to replicate their previous suc-

36. See The Endowment for Education of the National Conference of Bankruptcy Judges,available athttp://www.ncbj.org/endowrpt02.htm (last visited May 19, 2003) (listing recipients ofgrants from the NCBJ Endowment for Education). A highly-publicized study critical of the impactof means-testing was funded by the American Bankruptcy Institute, another organization of bank-ruptcy professionals. See Marianne B. Culhane & Michaela M. White, Taking the New Consumer

Bankruptcy Model for a Test Drive: Means-Testing Real Chapter 7 Debtors, 7 AM.BANKR.INST.L.REV. 27 (1999). The conclusions of that study rest on an erroneous understanding of how the budgetallowances for means-testing would be calculated. See Judge Edith H. Jones & Todd J. Zywicki,ItsTime for Means-Testing, 1999 B.Y.U.L.REV. 177, 187-88.

37. For instance, bankruptcy lawyers attempted to force through a recommendation to weakenthe disinterestedness requirement, but the initial vote on the effort to do so was later reconsideredafter it drew substantial opposition from other members of the Commission. The incident is de-

scribed in Todd J. Zywicki, Mend It, Dont End It: The Case for Retaining the DisinterestednessRequirement for Debtor in Possessions Professionals, 18 MISS.C.L.REV. 291 (1998).

38. Congressman Jerrold Nadler spearheaded opposition to the BRA in the House; SenatorsPaul Wellstone and Edward Kennedy did so in the Senate. Each of the three have received thou-sands of dollars of campaign contributions from lawyers and lawyers are among the top two or threecontributors to their campaigns. Senator Kennedy alone received over one million dollars from law-yers and lobbyists in his last Senate election. See http://www.opensecrets.org. See also Zywicki,With Apologies toScrewtape, supra note 28, at 626 n.68 (elaborating on financial contributions inthe context of bankruptcy reform).


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cesses in turning the reform process to their advantage. Although a finalreckoning of the reasons why will require further study in the future, mypersonal experience suggests two reasons why this was the case.

First, the Republican takeover of Congress not only changed the ideo-logical orientation of Congress, it also dramatically changed the political

balance. Lawyers are simply less influential and less friendly with Republi-cans than with Democrats, especially in the Judiciary Committees, whichtraditionally have been the private playground for lawyers. The overwhelm-ing majority of lawyers political contributions flow to Democratic politi-cians.39 Moreover, on many important issues including tort reform, the Re-publican legislative agenda is fiercely opposed by a core Democraticconstituency of lawyers. Given this history, special-interest pleading bylawyers generally is less well-received by Republican congresses than bytheir Democratic predecessors.

Second, early on in the legislative process bankruptcy lawyers under-mined their own credibility through a strategy of confrontation and confu-sion, rather than constructive participation in the reform process. Instead ofoffering constructive influence on the process, bankruptcy professionals in-

stead launched a full-frontal assault against the BRA and its alleged politicalmotivations. The purpose of the strategy apparently was to delay the BRA inthe hopes of a Democratic takeover of Congress in the 1998 election cycle,which did not occur. Nonetheless, their aggressive rhetoric did stall reform,thereby emboldening the strategy. From that point on, bankruptcy profes-sionals committed themselves to a slash-and-burn rhetorical and politicalstrategy that quickly eroded their support on Capitol Hill. False chargesabout the purported negative effect of the BRA on women, children, poor,and infirm successfully spawned confusion and delayed reform in the short-run, but in the long-run the strategy has proven self-defeating. It soon be-came difficult to distinguish the bars legitimate criticisms from posturingand obstructionism, and blatant factual errors coupled with a hard-edgedrhetorical strategy eventually undermined the trustworthiness of bankruptcy

professionals. In the end, this squandered the one traditional source of pro-fessional influence their purported provision of nonpartisan technical ad-vice to Congress.

Which raises the third group of interests in Skeels trinity creditors.Much has been said and written about the influence of creditors in lobbyingfor the BRA, and while most of it is overblown, there is a kernel of truth inthe fact that for the first time in recent memory creditors as a group havebeen able to overcome their collective action problems to lobby effectivelyfor their interests. In part, this greater political organization reflects thegreater incentives of creditors to do something in the face of millions ofbankruptcy filings and the billions of dollars in discharged debts caused bythem. As the benefits of action (or the costs to be averted) rise, parties will

be willing to invest greater amounts to organize to capture those benefits.

40

But more fundamentally, the greater ability of creditors to organize regard-ing the BRA reflects the fact that unlike previous reform efforts, the benefits

39. See Zywicki, With Apologies to Screwtape, supra note 28, at 626 n.68.

40. See Gordon Tullock, The Welfare Costs of Tariffs, Monopolies, and Theft, 5 W.ECON.J.224 (1967).


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of the BRA are spread across many different classes of creditors, therebyovercoming the intramural struggles that have crippled creditor efforts in thepast. Unsecured creditors obtained such long-sought provisions such asmeans-testing eligibility of debtors for chapter 7 relief by creating a pre-sumption for high-income debtors with substantial repayment capacity to

file in chapter 13 instead of chapter 7 unless they can demonstrate signifi-cant hardship.41 There are several new protections for secured creditors aswell, such as rules limiting the cramdown of automobile loans and increasedpowers of mortgage creditors to respond to repeated bad-faith filings bydebtors simply to stave off foreclosure. Even tax creditors were given newmechanisms for protecting their rights. Finally, marital support creditors re-ceived several new protections that reduce the interference of bankruptcywith collection of alimony and child support obligations, as well as eliminat-ing the incentives of debtors to file bankruptcy strategically to dischargecertain marital obligations. Moreover, all creditors will benefit from reformsthat increase debtor accountability by making debtors repayment schedulesmore honest and limiting the ability of debtors to hide assets and understateincome. As the fabric of the 1978 Code has become increasingly tattered

and debtors have become increasingly savvy about exploiting the loopholesin the Code, it has become possible for creditors to find common ground tolobby for reforms that benefit all classes of creditors. Traditionally politicalaction by creditors has been frustrated by the zero-sum nature of bankruptcy more money for secured creditors means less for unsecured creditors andvice-versa. Today, however, bankruptcy losses to all creditors are suffi-ciently large and widespread that all creditors have something to gain fromreducing bankruptcy fraud and abuse, and as a result a coherent and stablecoalition of creditors has been able to hold together for several years.

While creditors were actively involved in the legislative process of theBRA, it is easy to overstate their influence. In a recent study, Stephen Nunezand Howard Rosenthal conclude that perhaps 15 of the 306 members votesin the House in favor of the BRA in 2001 may have been swayed by cam-

paign contributions from the consumer credit industry about five percentof the Houses 74% majority in favor of passage.42 Indeed, although Nunezand Rosenthal examine only the number of votes influenced by creditor con-tributions, it is probably the case that these votes were at least to some ex-tent canceled out by lobbying by bankruptcy professionals against reform.The modest effect of lobbying by creditors and lawyers suggests that posi-tions on the BRA were driven largely by the ideological debate betweenpro-debtor and personal responsibility advocates rather than politicaland financial calculation. In this, the BRA can be distinguished from the re-form process of the 1978 Code. In 1978, the debate focused primarily on re-forms to the chapter 11 process rather than on consumers. As a result, thedebates were technocratic and interest-group driven, allowing bankruptcy

professionals to claim an upper-hand in the process. By contrast, the core

41. The rationale and mechanism of means-testing is described in detail in Jones & Zywicki,supra note 36, at 181-207.

42. STEPHEN NUNEZ & HOWARD ROSENTHAL, BANKRUPTCY REFORM CONGRESS:CREDITORS,COMMITTEES,IDEOLOGY, AND FLOOR VOTING IN THE LEGISLATIVE PROCESS (RussellSage Found., Working Paper No. 196, 2002).


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reforms in the BRA were driven by consumer bankruptcy issues, an areawith heavy ideological overtones.

The three sets of influences that comprise the core of Skeels analysisthus explain the probable success of the BRA, despite the efforts to derail it.First, an ideological shift in Congress following the 1994 elections created a

new constituency for an ideology rooted in personal responsibility, whichmanifested itself in a concern over soaring personal bankruptcy filing ratesduring an era of unprecedented economic prosperity. This new ideologicalinfluence counterbalanced the traditional prodebtor ideology that histori-cally dominated ideological thinking about bankruptcy. Second, the interestsof bankruptcy professionals were attenuated relative to prior eras. In part,this was because the new Republican majority was less responsive thanDemocrats were to the interests of lawyers. In addition, early on in the re-form process bankruptcy professionals committed themselves to a crude andpartisan rhetorical and political strategy that sacrificed the one source of in-fluence that they were able to claim in the past the provision of construc-tive nonideological technical advice. Third, creditors were able to overcometheir traditional collective action problems and thereby patch together a set

of reforms that would satisfy creditors from across the spectrum: secured,unsecured, marital support, and even government creditors. Thus a combina-tion of factors congealed to create an environment rich for bankruptcy re-form: a less debtor-oriented ideological environment, weakened influenceby bankruptcy professionals, and strengthened influence by creditors. In thisenvironment, therefore, the overwhelming and bipartisan support for bank-ruptcy reform in both houses of Congress was not surprising. Although re-form has failed thus far, it is expected eventually.

III. THE FUTURE OF BANKRUPTCY LAW

In the final chapters of the book, Skeel reviews many of the current hottopics in bankruptcy law and policy and offers predictions about the future

of bankruptcy law, both domestically and internationally. Of particular in-terest is the impact of globalization on the future evolution of Americanbankruptcy law. Skeel concludes that globalization will have minimal im-pact on the structure of American bankruptcy law. Although the new,world economy will have important effects, he writes, the basic parame-ters of American bankruptcy law are unlikely to change. We will continue tosee the same three forces creditors, prodebtor ideology, and bankruptcyprofessionals and the shape of the bankruptcy process will remainroughly the same (p 241). In particular, Skeel observes, that despite themany criticisms of American bankruptcy law, under the pressures of global-ization, bankruptcy law in much of the world is evolving to look more likethe American bankruptcy system, rather than less (p. 241). On both businessbankruptcy and consumer bankruptcy, the rest of the world is loosening itsbankruptcy laws (p. 241). Thus, even though other countries bankruptcylaws generally remain stricter than in the United States, the direction is clear they are moving toward more generous bankruptcy laws.

The important point, however, is that all of the pressure unleashed by global-ization is pushing in this direction. All around the world, other nations are be-ginning to adopt some of the features of U.S. bankruptcy law. There is little


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evidence of a trend in any other direction, in the United States or elsewhere. (p.243)

In general, the world does seem to be moving toward more generousbankruptcy laws. In the United States, however, there is in fact clear evi-dence of a counter-trend as exemplified by the BRA. Not only does the

BRA temper the prodebtor character of consumer bankruptcy, it alsostreamlines business bankruptcies to reduce the cost and delay of the chapter11 process. By contrast, there is no viable constituency for the adoption ofthe NBRCs prodebtor recommendations. In fact, as chapter 11 has increas-ingly become a refuge for scandal-plagued companies, public opinion seemsto be turning against chapter 11. In addition, creditors are becoming increas-ingly ingenious in changing actual bankruptcy practice and devising non-legislative contractual and other self-help mechanisms for effectively opt-ing-out of bankruptcy completely or for devising mechanisms to minimizethe expense, risk, and delay of being entangled in Americas bankruptcyproceedings.43 These legislative and practice attempts to reign-in the ex-cesses of the American bankruptcy system manifest de jure and de factotrends toward a more restrictive bankruptcy regime in the United States.

The overall effect of globalization, therefore, probably will not be tocreate a uniform trend toward American-style bankruptcy systems. Rather,the likely result will be global convergence of bankruptcy regimes. Regimesthat are excessively prodebtor, such as the United States, will tend to be-come less so; regimes that are insufficiently prodebtor, such as Europe, willtend to liberalize. The effect of globalization will be to establish a process ofcompetition in economic policy that will tend to reward countries that adoptefficient economic policies and punish those that do not.44 Within Amer-icas federalist system, competition among states has tended to produceconvergence on efficient commercial and corporate law rules.45 Given thefree flow of capital around the world today, it is likely that such pressureswill increasingly shape corporate governance rules around the world. Exces-sively prodebtor regimes such as the United States will be forced to tempertheir excesses in order to remain competitive in the global environmentwhile Europe and elsewhere will tend to liberalize in order to increase en-trepreneurship and capital development in their moribund economies.

Additionally, globalization probably will have the unanticipated effectof weakening the prodebtor ideology that has dominated American bank-ruptcy law during this century. Progressives defend chapter 11 as a mecha-nisms for advancing social goals such as preservation of jobs and communi-ties. This argument is questionable on its face, as inefficient chapter 11reorganizations save incumbent businesses and jobs, but only at the cost ofreducing the availability of capital for new entrepreneurs and the creation ofnew jobs elsewhere in the economy.46 More importantly, the attainment ofthese progressive policies is dependent on the willingness of private credi-

43. See John Armour et al., Corporate Ownership Structure and the Evolution of Bankruptcy

Law: Lessons from the United Kingdom, 55 VAND.L.REV.1699 (2002).

44. See John O. McGinnis, In Praise of the Efficiency of Decentralized Traditions and TheirPreconditions, 77 N.C.L.REV. 523 (1999).

45. See Bruce H. Kobayashi & Larry E. Ribstein,Evolution and Spontaneous Uniformity: Evi-dence from the Evolution of the Limited Liability Company, 34 ECON.INQUIRY 464 (1996).

46. See Zywicki,Rescuing Business, supra note 18, at 373-74.


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tors to subsidize it. There is strong evidence that creditors increasingly areunwilling to bear this burden and, as a result, are already trying to opt-out ofthe chapter 11 system. Globalization amplifies this reluctance, producingpressures toward the adoption of efficient economic policies, whether tax,trade, securities, labor, or bankruptcy policies. In the past, creditors were

forced to bear these costs of social engineering because of the difficulty ofescaping the reach of national bankruptcy laws. Moreover, to the extent thatsocial benefits were actually provided, creditors may have been more will-ing to subsidize inefficient reorganizations when the beneficiaries wereother Americans.

In the modern world, however, capital is not tied to any particular coun-try. Thus, it is far easier to escape the tax imposed by a nations inefficientbankruptcy laws. It also is doubtful that international investors will be will-ing to allow American bankruptcy judges to redistribute their wealth to sub-sidize American workers and lawyers through chapter 11. To the extent thatchapter 11 raises the costs and risks of investing in America, internationalinvestors will direct their capital to more efficient markets. In short, thepressures on the United States to adopt more efficient bankruptcy laws is

much greater than in the past. As chapter 11 hampers American competi-tiveness, policymakers will find it increasingly expensive to indulge theideological desires of bankruptcy progressives, thus their influence shouldwane.

In the consumer bankruptcy arena, the BRA reflects a similar trend inthe direction of greater restrictions on access to bankruptcy. American soci-ety is gradually reestablishing traditional values in the wake of what FrancisFukuyama has dubbed the Great Disruption of the past several decades.47Promiscuous consumer bankruptcy laws were just one of the many socialexperiments of recent decades that have proven contrary to human natureand the needs of successful societies.48 The movement toward greater ac-countability in consumer bankruptcy represents a necessary step of socialself-correction after a period of chaos and revolution.

IV. CONCLUSION

David Skeel has written a brilliant and comprehensive book on the his-tory of bankruptcy law in America. The use of cutting-edge analytical toolsmakes it possible for him to not only persuasively explain the history ofAmerican bankruptcy law, but to offer insightful predictions about the fu-ture evolution of bankruptcy law in America. It is certainly the most impor-tant book on bankruptcy law that has been published since Thomas Jack-sons acclaimed The Logic and Limits of Bankruptcy. Given the prominenceof bankruptcy in todays business and political headlines, this is a book thatshould gain a wide audience among bankruptcy specialists and commercialand corporate law generalists alike.

47. FRANCIS FUKUYAMA, THE GREAT DISRUPTION: HUMAN NATURE AND THERECONSTITUTION OF SOCIAL ORDER (1999).

48. Zywicki,Bankruptcy Law as Social Legislation, supra note 22, at 430-31.

Documents

The Past, Present, And Future of Bankruptcy Law in America